The Equality Act 2010 381As regards each of the protected characteristics, the Act protects those who have the
par-ticular characteristic and those who belong to a group which shares the same
characteristic.
The protected characteristic of agemeans belonging to a particular age group, such
as being under 18 or over 50. Where people belong to the same age group, they share the
protected characteristics of age. For example, both 18-year-olds and 50-year-olds share the
characteristic of being in the ‘under 60’ age group.
There is currently a default retirement age of 65. The age is to be reviewed in 2011.
Employers can retire employees at the age of 65 and this will not amount to unfair dismissal
or discrimination. However, if the employer has a normal retirement age which is not 65
then other rules apply. If the normal retirement age is over 65 then it can be unfair dismissal
to retire an employee before the employee has reached the normal retirement age. This
is the case even if the employee is over 65. A normal retirement age which is less than 65
will need to satisfy a test of objective justification. To satisfy this requirement the employer
will need to show that the normal retirement age is a proportionate means of achieving
a legitimate aim. A legitimate aim might include such matters as an economic factor,
or a health and safety matter or a training requirement of the job. The requirement of
proportionality means that the benefit of achieving the aim must be weighed against the
disbenefits of discrimination.
Employees who do not want to retire on their notified retirement age can request that
they be allowed to stay on. The request must be made within three months of the expected
date of retirement. The employer has a duty to consider such a request but does not have to
agree to it.
Schedule 9 exempts the different national minimum wages. Redundancy schemes are
also exempted as long as all employees’ redundancy payments are calculated on the
same basis. So a person with more years of continuous employment can be given a greater
redundancy payment than a person with fewer years.
A person has the protected characteristic of disability, and is known as a disabled
person, if he has a physical or mental impairment and the impairment has a substantial and
long-term adverse effect on his ability to carry out normal day-to-day activities. An impair-
ment is long-term if it has lasted for at least 12 months, or is likely to do so, or is likely to
last for the rest of a person’s life. If an impairment has ceased to have a substantial adverse
effect on a person’s ability to carry out normal day-to-day activities it will still be regarded
as a disability if it is likely to recur. Severe disfigurement is regarded as having a substan-
tial adverse effect on a person’s ability to carry out normal day-to-day activities. Cancer,
HIV infection and multiple sclerosis are each regarded as a disability.
A person has the protected characteristic of gender reassignmentif he or she is a
transsexual person. A transsexual person is a person who is proposing to undergo a process
to change sex, or has started or completed such a process.
A person has the protected characteristic of marriage or civil partnershipif he or she is
either married or a civil partner. People who are not married and not in a civil partnership
do not have this protected characteristic and are not protected by the Act.
The protected characteristic of race includes colour, nationality or ethnic or national
origins. People who share the same colour, nationality or ethnic or national origins share
the same racial group, and one racial group can be comprised of two or more distinct racial
groups. For example, ‘black Britons’ are a racial group comprising the racial group ‘black’
and the national group ‘British’. Caste is currently not an aspect of race, but s. 9 allows a
Government Minister to amend the Act so that caste becomes an aspect of race. The follow-
ing case considered the meaning of ‘ethnic’.